534. UNITED STATES BREWING CO. v. STOLTENBERG,

ADM'R

SUPREME COURT OF ILLINOIS. 1904

211 IU. 531, 71 N. E. 1081

APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. P. VAIL, Judge, presiding. This is an action on the case, brought on January 6, 1902, in the Circuit Court of Cook county by appellee, as administrator of John F. McHale, deceased, and against appellant to recover damages for injuries to the deceased, resulting in his death, alleged to have been caused by the negligence of the appellant. The plea of the general issue was filed. The jury returned a verdict in favor of the appellee for $5,000.00, and judgment was entered for that amount upon the verdict. Upon appeal to the Appellate Court the judgment has been affirmed, and the present appeal is prosecuted from such judgment of affirmance.

The facts are substantially as follows: John F. McHale, at the time of his death was a little boy about four years old, and was killed on August 27, 1901, by being run over by one of appellant's wagons. The accident happened on Leavitt street in Chicago from twenty-five to seventy-five feet north of Huron street, Leavitt street running north and south, and being crossed by Huron street, which runs east and west. A driver, named Fred Fischer, a servant of the appellant, was driving a wagon, which inflicted the injury, north upon Leavitt street; and the boy was struck by the wagon after it had crossed Huron street. . . . Some of the testimony of the appellee tended to show that the appellant's wagon was going at the rate of from ten to fifteen miles an hour, and others from eight to ten miles per hour. The evidence of the appellant tended to show that the appellant's wagon was proceeding north on an ordinary trot, and at a speed not to exceed four or five miles an hour.

F. J. Canty and F. E. Gray (J. C. M. Clow of counsel), for appellant. Alexander Sullivan (Francis J. Woolley of counsel), for appellee. Mr. Justice MAGRUDER delivered the opinion of the Court: . . Second. It is claimed, on the part of the appellant, that the trial Court erred in permitting the appellee to introduce in evidence an ordinance of the city of Chicago, forbidding the driving of horses in the city at a greater rate of speed than six miles an hour. The ordinance, so objected to, is as follows:

"SEC. 1259. No person shall ride or drive any horse or horses or other animal in the city of Chicago with greater speed than at the rate of six miles an hour, under a penalty of not more than ten dollars for each offence, to be recovered from the owner or driver thereof, severally and respectively."

The contention of the appellant upon this subject is that, while the violation of a statute may be prima facie evidence of negligence, yet that a city council cannot make an act negligence which in the absence of an ordinance would not be negligence; in other words, that a city council cannot by ordinance create civil liabilities between citizens. In support of this contention the case of Rockford City Railway Co. v. Blake, 173 Ill. 354, is referred to. It does not appear, however, that in the Blake case the ordinance was pleaded in the declaration. . . . The violation of a statute is prima facie evidence of negligence. This is also true as to the violation of a city ordinance, where the ordinance is such a one as the city is authorized by its charter, or by statute, to make. The ordinance, when passed in pursuance of a power conferred by statute, has the force and effect of the statute. . . Clause 21 of section 63 and article 5 of the City and Village Act, which act is the charter of the city of Chicago, confers the power upon the city council" to regulate the speed of horses and other animals, vehicles, cars and locomotives within the limits of the corporation." (1 Starr & Curtis, Annot. Stat., 2d ed., p. 696.) Inasmuch, therefore, as the city council of Chicago had the power to pass the ordinance, set up in the additional count and introduced in evidence in the case at bar, such ordinance has the force and effect of a statute. Its violation constitutes a prima facie case of negligence, if such violation caused the injury, which resulted in the death of the deceased. Consequently, its admission was not error.

In Channon Co. v. Hahn, 189 Ill. 28, it was held that, in an action by an employee for injuries received from falling down an open elevator shaft, proof of the defendant's violation of a city ordinance, requiring all persons controlling passenger or freight elevators in buildings to employ some person to take charge of and operate the same, constituted a prima facie case of negligence, if such violation caused or contributed to the injury; and we there said (p. 32):

The breach of this ordinance was alleged in different counts of the declaration, was clearly established by the proof, and this constituted a prima facie case of negligence, if the violation of the municipal law caused or contributed to the personal injury received by the appellee."

In True & True Co. v. Woda, 201 Ill. 315, where a city ordinance prohibited the placing of any article or thing on a sidewalk in front of any store, shop or other place so as to occupy more than three feet next to the building, and imposed a fine thereof, it was held that the violation of such ordinance made a prima facie case against the appellant, it appearing that the ordinance or ordinances were pleaded and proven by the appellee. It has been held that "the fact that the rate of speed, at which the defendants were driving, was prohibited by the ordinance, would of itself be proof of negligence." (1 Thompson on Negligence, § 1307; Pittsburg, Cincinnati, Chicago and St. Louis

Railway Co. v. Robson, 204 Ill. 254; City of Pekin v. McMahon, 154 id. 141; Barrett v. Smith, 128 N. Y. 607.) . .

We have thus noticed all the objections, made by counsel for the appellant, and find no good reason for reversing the judgments of the lower courts. Accordingly, the judgment of the Appellate Court, affirming the judgment of the Circuit Court, is affirmed.

Judgment affirmed.

535. GRISWOLD v. BREGA

APPELLATE COURT OF ILLINOIS. 1895

57 Ill. App. 554

[Printed post, as No. 536.]1

1 [TOPIC VI. PROBLEMS:

The defendant was driving on the wrong side of the street. The plaintiff was approaching on a bicycle from the other direction. The defendant did not see the plaintiff, owing to the darkness. They collided, and the plaintiff was hurt. Is the defendant responsible? (1897, Cook v. Fogarty, 103 Ia. 500, 72 N. W. 677.)

The defendant backed a railroad train over a crossing without a lookoutman at the rear, contrary to statute. Is the defendant responsible per se? (1897, Iron Mountain R. Co. v. Dies, 98 Tenn. 655, 41 S. W. 860.)

The defendant suspended across the street a banner-sign on a wire rope fastened to iron bolts in the buildings. A high wind blew it down, jerking out one of the iron bolts, which smashed a window in the plaintiff's building. A city ordinance forbade such signs. Is the defendant responsible per se? (1871, Salisbury v. Herchenroder, 106 Mass. 458.)

The defendant operated a coal mine, and dumped the slack on an open lot. The slack was permanently in a state of combustion. The plaintiff, a boy, stepped into it and was badly burned. A statute imposed a penalty on persons having such a slack-pile who did not fence in such manner as to prevent loose cattle or horses from having access." Is the defendant responsible per se? (1894, Union Pacific R. Co. v. McDonald, 152 U. S. 262.)

A peanut-roaster, on wheels, and operated by steam, was kept on the street in front of the owner's store, thus obstructing traffic. The obstruction was an unlawful one, the roaster not being a vehicle. The roaster's boiler exploded, destroying both eyes of the plaintiff, a traveller. The roaster is a machine likely to explode if not carefully made and operated. The city authorities knew this, and knew that the roaster was there. Are they liable? (1910, Frank #. Warsaw, 198 N. Y. 463, 92 N. E. 17.)

NOTES:

46

369).]

Negligence: violation of speed ordinance as evidence." (C. L. R., VII,

EXCURSUS ON BOOKS I AND II TURAL ELEMENTS
OF A TORT

(Relation between the Right, the Tortious Act, and the
Cause of Action.)

536. GRISWOLD & DAY v. BREGA & ROSTER

APPELLATE COURT OF ILLINOIS.

57 Ill. App. 554

1895

Mr. Justice GARY delivered the opinion of the Court:

The case shows that the appellants proposed to remove the New Jersey State Building, erected in Jackson Park at the time of the World's Fair, to a block where Roster has a fine brick and stone apartment house, and nearly opposite on the street to the property of Brega; that the building is a large cheap two story frame structure; that when it. was erected, Jackson Park was not within the fire limits of Chicago and the place to which the appellants propose to remove the building, as well as the premises of the appellees were within such fire limits; that an Ordinance of the City requires "Any person desiring to remove a wooden building shall first obtain the written assent to such removal, from persons owning a majority of feet front of the lots in the same block in which it is proposed to locate such removed building and also a majority of persons owning front feet opposite the proposed location and within 150 feet of the same." The decree recites that the Court heard the evidence and proofs offered in open court, but there is no certificate of evidence and the general recital in the decree that all the material allegations of the bill are true, is therefore to be taken literally. Frink v. Neal, 37 Ill. App. 621.

The bill charges and the decree finds that such assent, though once obtained, was so obtained by misrepresentation and was, in part, revoked. It is not necessary to go into particulars as to such assent, the brief of the appellants not relying upon it.

The bill charges and the decree finds that the building if so removed would expose Roster's house to more danger from fire and make the property of both the appellees less marketable and saleable. There is much more in the bill and in the decree, but these are matters special to the appellees. The Court awarded a perpetual injunction against the removal. First Nat. Bank v. Sarlls, 129 Ind. 201, and Kaufman v. Stein, 37 N. E. Rep. 333, are authorities for such injunction,— not simply because an Ordinance is violated, but because of endangering the house of Roster and impairing the value of the property of both the appellees, by an act which is unlawful by ordinance. The fact that it is unlawful changes into a nuisance what otherwise would not be a nuisance, and this is in accord with the rationale of the decision in King . Davenport, 98 Ill. 305. The decree is affirmed.

WATERMAN, J., dissents.

SPECIAL action of trespass and battery for a battery committed by the defendant upon the plaintiff, and breaking his skull. The plaintiff declares of the battery, &c., and that he brought an action for it against the defendant and recovered 11 7. and no more; and that after that recovery part of his skull by reason of the said battery came out of his head, per quod, &c. The defendant pleaded the said recovery in bar. Upon which the plaintiff demurred. And Shower for the .plaintiff argued, that this action differed from the nature of the former, and therefore would well lie, notwithstanding the recovery in the other; because the recovery in the former action was only for the bruise and battery, but here there is a maihem by the loss of the skull. As if a man brings an action against another for taking and detaining of goods for two months, and afterwards he brings another action for taking and detaining for two years, the recovery in the former action is not pleadable in bar of the second. If death ensues upon the battery of a servant, this will take away the action per quod servitium amisit. And then if a consequence will take away an action, for the same reason it will give an action. If a man brings an action for uncovering his house, by which his goods were spoiled, and afterwards by reason of the said uncovering new goods are spoiled, he shall have a new action. Quod Holt negavit. And per totam curiam, the jury in the former action considered the nature of the wound, and gave damages for all the damages that it had done to the plaintiff; and therefore a recovery in the said action is good here. And it is the plaintiff's fault, for if he had not been so hasty, he might have been satisfied for this loss of the skull also. Judgment for the defendant, nisi, &c. Post, 692.

538. ROSWELL v. PRIOR

KING'S BENCH. 1701

12 Mod. 635

IN Case, for the continuance of a nusance by lessee for years against defendant, who had been also a lessee for years of the place where the nusance stood. Upon a special verdict the case was: The defend